Bush considers changes to Posse Comitatus Act

Both right and left wary of giving domestic police power to military

Published 5:30 am, Sunday, October 2, 2005

WASHINGTON - The law is from a bygone era, it has a Latin name and it's never led to a prosecution, much less a conviction.

Yet the mere hint that President Bush might try to tinker with the 1878 Posse Comitatus Act is stirring opposition across the political spectrum, prompting conservative and liberal activists to line up against any move that would empower U.S. troops to shoot or arrest civilian looters in the chaotic aftermath of national disasters.

The Civil War-era law bars federal troops from carrying out law enforcement duties inside the United States during peacetime, short of suppressing an insurrection. Congress enacted the prohibition to curtail alleged excesses by Union occupation forces in former Confederate states after the Civil War.

Law up for review

Bush signaled that the law was up for review when he said in a nationally televised address from New Orleans on Sept. 15 that the aftermath of Hurricane Katrina showed "a challenge on this scale requires greater federal authority and a broader role for the armed forces."

White House Press Secretary Scott McClellan later said revision or repeal of the Posse Comitatus Act was an issue that "needs to be looked at" by Congress and the administration, adding that officials are in the "early planning of discussing it."

Some of the initial impetus for changing the law stemmed from a public outcry over some hurricane victims in New Orleans exploiting the chaos to loot appliance outlets, jewelry shops and clothing stores before police, National Guard troops or active duty soldiers reached flooded areas.

Amid more recent indications that initial reports of lawlessness were exaggerated, concerns over giving federal troops wider authority have moved to center stage.

Potential for misuse

Paul Weyrich
, a conservative activist who heads the
Free Congress Foundation
, says granting military commanders authority to carry out arrests, searches or seizures would risk potential misuse to crush political dissent.

Another reason he's against giving military commanders that power is that such a move could erode citizens' faith in the armed forces. "That would be the end of the all-volunteer military and a sure way to bring back the draft," Weyrich contends.

"We need accountability for the failed response in New Orleans rather than trying to scapegoat legal restrictions that didn't affect the outcome," says Tim Edgar, the lawyer handling national security policy issues for the organization.

"The problems in New Orleans had nothing to do with federal troops being unable to enforce the law."

That view is largely shared at the Pentagon, where Defense Secretary Donald Rumsfeld is quietly working to slow, if not torpedo, any changes. Law enforcement is "a very narrow piece of the task of dealing with a catastrophic difficulty or problem," Rumsfeld emphasized last week.

72,000 troops deployed

Nearly 72,000 troops were deployed in Gulf Coast states in response to Hurricanes Katrina and Rita, including 22,000 active duty troops under presidential command and 50,000 National Guard troops under the command of governors in Alabama, Mississippi, Louisiana and Texas.

Outside experts see little need to revamp the law. Active duty armed forces already have authority to provide humanitarian relief and to quell insurrections with or without a state request. Military rules of engagement routinely permit U.S. troops to defend themselves if fired upon.

James S. Gilmore III, the former Republican governor of Virginia who led the Congressional Advisory Panel to Assess Domestic Response Capabilities for Terrorism Involving Weapons of Mass Destruction, says "nothing in the response to the hurricanes makes it necessary to change that law."

Old legal traditions

The law, with the Latin title that means "power of the county," draws upon the centuries-old legal traditions that empower sheriffs or other local law enforcement officers to deputize a "posse" of civilians to help enforce the law.

The act stipulates up to two years' imprisonment and fines of up to $10,000 for violations.

Even with the restrictions of the Posse Comitatus Act, a president has wide leeway to order active duty federal forces to carry out law enforcement duties under various exceptions enacted by Congress over the years and provisions of the Insurrection Act, originally adopted in 1809.

President George H.W. Bush ordered nearly 4,000 federal troops into Los Angeles in 1992 at the request of California Republican Gov. Pete Wilson to quell racial rioting after the acquittal of Los Angeles police officers in the videotaped beating of black motorist Rodney King.